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DPB3023:

COMMERCIAL LAW
CHAPTER 1: INTRODUCTION TO THE
MALAYSIAN LEGAL SYSTEM

CLO 1 State clearly the scenario of commercial


law in Malaysian legal system
At the of this chapter, student should be able to:
Describe the meaning, types and function of law
Describe the courts hierarchy and composition of
the courts and appointment of judges

INTRODUCTION TO THE MALAYSIAN LEGAL SYSTEM

1.1 Describe the meaning, types and function of


law
Definition of
Law

Function of
Law

Classification
of Law

History &
development
of Law in
Malaysia

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law

WHAT IS LAW???

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law


WHAT IS LAW???

To the layman, law is


understood as being a general
rule of conduct

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law


Oxford Dictionary

Enacted = written and


gazette
Customary rules = the
trace of the rules of the
community enforcing the
rules can be trace from its
origin

the body of enacted or


customary rules
recognized by a community
as binding

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law


Sir John Salmond

the body of principles


recognized and applied by
the state in the
administration of justice

Law consists of the rules


recognized and acted on by
courts of justice
A body of rules which are
enforced by the state

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law


John Austin

a command set by a
superior being to an inferior
being and enforced by
sanctions (punishments)

The superior being is the


state and the inferior being
is the individual
The sanctions are wide and
include imprisonment, fines,
damages, injunctions and
decrees of specific
performance

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law


Article 160(2) of the
Federal Constitution
1957

Item 43C Sec.2(1) of


the Interpretation &
General Clauses
Ordinance 1948

a. The written law;


b. Common law in so far as it is in
operation in the Federation or any
part thereof;
c. Any custom or usage having the
force law in the Federation

DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

1.1 Describe the meaning, types and function of law

Conclusion

Law may be defined as body of


rules which are enforced by the
state

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION
OF LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

Maintain justice in
society

Govern the conduct of


all members of society
Guides individuals in
ascertaining the soundness of
rules, and their impact upon
relationships

to encourage the doing of what


is right or just in a particular set
of circumstance

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATIO
N OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

Privat
e Law
Internation
al Law

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

Law

FUNCTION OF
LAW

CLASSIFICATIO
N OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

Public Law

Constitutional
Law
Criminal Law

Private Law

International
Law

Contract Law

Public Law

Tort Law

Private Law

Trust Law

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATIO
N OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

Public Law
Governs the relationship between individuals and the state
Constitutional Law
Lays down the rights of
individuals in state.
It deals with questions
such as supremacy of
Parliament and rights of
citizens

Criminal Law
Codifies the various
offences committed by
individuals as against the
state
The proceedings being
brought by the Public
Prosecutor

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATIO
N OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

Private Law (Civil


Law)
Concerned with matters that effect the rights & duties of
individuals amongst themselves
Contract Law
Based on
agreement.
Determines
when a promise
or set of
promises is
legally
enforceable

Tort Law
Based on
obligation
imposed by law
A tort is the
breach of a
general duty
which is
imposed by the
law, & not
agreed between

Trust Law
A trust is an
equitable binding
a person
(trustee) for the
deal with
property over
which he has
control (trust
property) for the
benefit of

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATIO
N OF LAW

HISTORY &
DEVELOPMEN
T OF LAW IN
MALAYSIA

International Law
Body of law which is composed for its greater part of the
principles & rules of conduct which states feel themselves
bound to observe
Public Law
Deals with
relationship
between states
E.g. border,
territorial waters
etc.

Private Law
Concerned with the
application of various
national laws of the facts
of a particular case
involving 2 or more
countries.
Applicable to a marriage
between 2 different
nationals in a 3rd country

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPME
NT OF LAW
IN MALAYSIA

Source of Malaysian
Law
The legal sources, i.e. the legal rules that make up the law in
Malaysia
Written Law
1. Federal
Constitution
2. State
Constitution
3. Legislation
4. Subsidiary
Legislation

Unwritten Law
1. English
common law
& equity
2. Judicial
decision
3. Customary
law

Syariah Law
1. Al-Quran
2. Hadiths

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPME
NT OF LAW
IN MALAYSIA

Written Law
Also referred to as statute law. The courts are guided by:
Interpretation Acts, Extrinsic material, Common law, &
Precedent
Federal
Highest
law in
Malaysia
Sets out
legal
framework
& rights of
Malaysian
citizens

Parliamenta
ry
Laws
enacted by
Parliament
These laws
are
subjected
to the
Federal
Constitutio

State
State law
governing
laws in the
particular
state

Subsidiary
Order,
regulation,
notificatio
n, by-law,
proclamati
on that
have
legislative
effect

1.1 Describe the meaning, types and function of law


DEFINITION
OF LAW

FUNCTION OF
LAW

CLASSIFICATI
ON OF LAW

HISTORY &
DEVELOPME
NT OF LAW
IN MALAYSIA

Unwritten Law
Unwritten rules, principles, and norms that have the effect and
force of law though they have not been formally enacted by the
government.
English Common
Law
Do not originate
from Malaysian
Law
Application of
English Law is
specified in the
statutes & only
apply when there
is no specific law

Judicial Decisions
Doctrine of
Binding
Precedent.
Decisions of
superior courts
binding on inferior
courts.
Inferior courts
must follow the
law made by

Customs
Also known as
Adat Law,
example Adat
Perpatih & Adat
Temenggung

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Judicial System In
Malaysia
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The roles of the courts is more concerned with administration


of the law.
Jurisdiction refers to the cases or matters that a court can
hear, and is established by statute
Judiciary has the power to hear & determine civil & criminal
matters

1.2 The courts hierarchy and composition of the courts


and appointment of judges

HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Judicial System In
Malaysia
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The courts structure is divided into Superior Courts &


Subordinate Courts
Superior Courts consist of Federal Court, Court of Appeal &
High Court
Subordinate Courts consist of Sessions Court, Magistrates
Court, Juvenile Court, Native Court & Penghulu Court

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Judicial System In
Malaysia
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The courts structure id divided into Superior Courts &


Subordinate Courts
Superior Courts consist of Federal Court, Court of Appeal &
High Court
Subordinate Courts consist of Sessions Court, Magistrates
Court & Penghulu Court

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Federal Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

Is the highest court in Malaysia.


Has jurisdiction in matters including the following:
To hear criminal appeals from the Court of Appeal
To determine constitutional questions which have arisen in
the proceedings of the High Court but referred to the
Federal Court for decision
It can hear disputes on any matter between any state or
state legislation as being excess of powers

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Court of
Appeal
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

Has jurisdiction to hear and determine any appeal against any


High Court decision on criminal matters.
Also has jurisdiction to hear and determine civil appeals
generally for cases where the amount or value of the subjectmatter of the claim is at least RM250,000

1.2 The courts hierarchy and composition of the courts


and appointment of judges
High Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The jurisdiction of the High Court is original, appellate &


advisory
It has unlimited criminal & civil powers. Any civil matter
which cannot be determined in the subordinate courts is
heard before the High Court
Also possesses the power to refer any points of law arising in
the appeal for the decision of the Court of Appeal

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Session Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The highest of the subordinates or inferior courts.


Its criminal jurisdiction extends to all offences other than
offences punishable with death.
Has jurisdiction of civil matters where the amount dispute or
value of the subject-matter does not exceed RM100,000
Matters relating to land, specific performance or recession of
contracts, injunction, probate, divorce, bankruptcy are
excluded from its jurisdiction

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Magistrates
Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

Deals with minor civil and criminal cases. The court is


presided over by a magistrate.
A first class magistrate possesses jurisdiction to all which the
maximum term of punishment does not exceed 10 years
imprisonment, or all offences punishable with fine only
A second class magistrate has jurisdiction to offences for
which the maximum term of imprisonment does not exceed
12 months imprisonment or offences punishable with fine
only
Has the jurisdiction to all civil matters where the amount in
dispute not exceed RM25,000

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Juvenile Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

Deal with criminal offenders below the age of 18.


Under Section 4(4) Juvenile Court Act 1947 (Revised 1972),
the court conferred jurisdiction all offences except those
punishable by death

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Penghulu
Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The lowest level of subordinate courts in Peninsular Malaysia.


It is presided over by a Penghulu for a mukim.
The Penghulu is empowered to hear and determine original
proceedings of a civil in which the plaintiff seeks to recover a
debt or liquidated demand in money not exceeding RM50 and
all parties to the proceedings are person of an Asian race
speaking & understanding the Malay language

1.2 The courts hierarchy and composition of the courts


and appointment of judges
Native Court
HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINTMEN
T OF JUDGES

The Native Court is peculiar only to Sabah & Sarawak. It


exercises jurisdiction over matters affecting native customs
where the parties are natives.
Sarawak - A native person who is a citizen and is of race
indigenous to Sarawak (Ibans, Bidayuhs, Penans, Kayans
etc.)
Sabah - A native person who is citizen, is the child or
grandchild of a person of race indigenous to Sabah
(Kadazans, Dusuns)

1.2 The courts hierarchy and composition of the courts


and appointment of judges

HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINMEN
T OF JUDGES

The Malaysian Judiciary is headed by the Chief Justice.


The President heads the Court of Appeal whilst two Chief
Judges head the High Courts in Peninsular and Sabah
and Sarawak.
They also sit in the Federal Court, together currently with
two other Federal Court judges.
The President of the Court of Appeal and the Chief Judges of
the High Courts shall be responsible to the Chief Justice.

1.2 The courts hierarchy and composition of the courts


and appointment of judges

HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINMEN
T OF JUDGES

Under Article 122B of the Malaysian Constitution, the


appointment of the Chief Justice, are made by His Majesty
The Yang di-Pertuan Agong on the advice of the Prime
Minister after consulting the Conference of Rulers.

1.2 The courts hierarchy and composition of the courts


and appointment of judges

HIERARCHY
OF LAW

COMPOSITIO
N&
APPOINMEN
T OF JUDGES

The appointment of Court of Appeal judges is also governed


by the same procedures with the additional requirement for
the consultation of the President of the Court of Appeal.
As for the appointment of High Court judges, similar
procedures are prescribed with the additional requirement of
consultation with the respective Chief Judges.

Q & A SESSION
The end